1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 19TH DAY OF JULY 2013

BEFORE

THE HON’BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR

WRIT PETITION No.23762 OF 2013 (GM-TEN)

C/W

WRIT PETITION No.14573 OF 2013 (GM-TEN)

IN W.P No.23762/2013

BETWEEN:

Wipro GE Healthcare Private Limited

A Company incorporated under the

Companies Act, 1956

Having its registered office at

No.4, Kadugodi Industrial Area

Bangalore-560 067

Rep by its Authorised Signatory &

Government Sales Manager

(Karnataka & Andhra Pradesh)

Mr. P. Sandeep. ..Petitioner

(By Sri Naganand, Sr. Counsel for

Sri Hegde Ganapathi Narayan, DUA Associates, Advs.,)

AND :

1. National Institute of Mental Health and Neurosciences

(Deemed University)

P.B.No.2900, Hosur Road

R

2

Bangalore-560 029

Rep by its Director/Vice Chancellor

Presently Dr. P. Satishchandra.

2. Siemens Limited

A Company incorporated under

the Companies Act, 1956

Having its registered office at

130, Pandurang Budhkar Marg

Worli, Mumbai-400 013.

Having its branch office at

No.49, Jyotimahal Building

3rd Floor, St. Marks Road

Bangalore-560 001

Rep by its Director/Authorised Signatory.

3. Philips Electronics India Limited

A company incorporated under

the Companies Act, 1956

Having its registered office at

7, Justice Chandra Madhab Road

Kolkata-700020

Having its Branch Office at

Philips Innovation Campus

Manyata Tech Park

Nagawara, Bangalore-560 045

Rep by its Director/

Authorised Signatory. ..Respondents

(By Sri K.G. Ragavan, Sr. Counsel for

Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.;

Sri A. Madhusudana Rao, Adv., for C/R1 and

Sri Udaya Holla, Senior Counsel for Smt. Nalina Mayegowda

for M/s. Poovayya & Co., Adv., for R3)

3

This Writ Petition is filed under Articles 226 and 227 of

the Constitution of India praying to declare the process of

selection of the lowest bidder by the first respondent is

arbitrary and illegal and consequently quash the decision

made by the first respondent pertaining to accepting the

technical bid of the second respondent and opening of the

financial bid of the second respondent etc.,

IN W.P No.14573/2013

BETWEEN:

Philips Electronics India Limited

A company incorporated under

the provisions of the

Companies Act, 1956

Having its registered office at

7, Justice Chandra Madhab Road

Kolkata-700020

Having its Branch Office at

Philips Innovation Campus

Manyata Tech Park

Nagawara, Bangalore-560 045

Rep by Mr. V.P. Thirumalai

Regional Sales Manager. ..Petitioner

(By Sri Udaya Holla, Sr. Counsel for

Smt. Nalina Mayegowda for Poovayya & Co., Advs.,)

AND :

1. National Institute of Mental

Health and Neurosciences

(Deemed University)

P.B.No.2900, Hosur Road

4

Bangalore-560 029

Rep by its Director/Vice Chancellor

Presently Dr. P. Satishchandra.

2. Siemens Limited

Having its registered office at

130, Pandurang Budhkar Marg

Worli, Mumbai-400 013.

Having its branch office at

No.49, Jyotimahal Building

3rd Floor, St. Marks Road

Bangalore-560 001

Rep by its Authorised

Signatory/Director.

3. Wipro GE Healthcare Private Limited

Having its office at Unit No.1

4th Floor, Inventor Building

ITPL, Whitefield

Bangalore-560 066

Rep by its Authorised

Signatory/Director. ..Respondents

(By Sri K.G. Ragavan, Sr. Counsel for

Sri T.S. Amarkumar, Adv., for C/R2 for M/s. Lawyers Inc.,;

Sri A. Madhusudana Rao, Adv., for C/R1 and

Sri Naganand, Senior counsel for Sri Hegde Ganapathi

Narayan for Dua Associates, Adv., for R3)

This Writ Petition is filed under Articles 226 and 227 of

the Constitution of India praying to direct the R1 to

consider and approve the technical bid of the petitioner

dated 22.3.2013 vide Annexure-G.

5

These Writ Petitions having been heard and reserved

for Orders, coming on for pronouncement of order this day,

the Court made the following :

O R D E R

These writ petitions are filed praying for approval of

the petitioners’ technical bids in respect of the notification

issued by the National Institute of Mental Health and

Neurosciences (‘NIMHANS’ for short) for purchase of

Integrated Simultaneous/Sequential 3T MR PET Scanner

System. Consequently, the petitioners have prayed for

direction to NIMHANS to open and consider the financial

bids of the petitioners. Certain consequential reliefs are

also prayed.

2. NIMHANS is one of the premier health and research

institutes in India and is a deemed University under the

provisions of the University Grants Commission Act. The

NIMHANS invited Expression of Interest from prospective

bidders by letter dated 23.8.2012 for supply, installation,

6

commissioning etc., of “A New State of Art, Top of the Line

3T MR PET MRS Scanner System with Latest Generation

Gradient System”. Petitioners as well as Respondent -

Siemens Limited (‘SIEMENS’ for short) submitted their

responses. It is relevant to note that the petitioners and

the respondent – SIEMENS are the only companies in the

world who are said to be manufacturing and supplying the

integrated simultaneous/sequential 3T MR PET Scanner

System. The Expressions of Interest received from the

bidders were opened on 14.9.2012. Thereafter pre-bid

meeting was held on 21st October 2012 in which the

petitioners and SIEMENS were participated. The

aforementioned three bidders and NIMHANS agreed on a

common list of specifications.

The Tender Notification dated 16.1.2013 was issued

by NIMHANS for Integrated Simultaneous 3T MR PET

Scanner System. In response thereto, petitioner in Writ

Petition No.14573/2013 viz., Philips Electronics India

7

Limited (‘PHILIPS’ for short) issued letter dated 21.1.2013

to NIMHANS requesting for certain amendment to the

tender document including deletion of “The PET detectors

should be housed within the MR magnet”. Essentially, the

PHILIPS requested that while simultaneous 3T MR PET were

invited, sequential 3T MR PET be included in the scope of

the tender. Thereafter the Corrigendum was issued on

8.2.2013 (vide Annexure-C in Writ Petition No.14573/2013)

to the Tender Notification.

Pursuant to the notification dated 16.1.2013,

NIMHANS received only a single bid from SIEMENS. Since

there was a single bid, NIMHANS decided to re-notify the

tender item and as such second global tender notification

dated 19.2.2013 was published by NIMHANS inviting bids.

Technical Committee recommended certain modifications to

the specifications. Pursuant to the second notification,

only two bidders viz., WIPRO and SIEMENS participated.

Both did not qualify the technical requirements.

8

Thereafter NIMHANS issued another Tender

Notification (third Call) dated 16.3.2013 inviting bids once

again for simultaneous 3T MR PET. PHILIPS issued another

letter dated 8.3.2013 (signed on 18.3.2013) vide Annexure-

E in Writ Petition No.14573/2013, requesting NIMHANS to

include sequential 3T MR PET also. In the meanwhile,

petitioner in W.P. No.23762/2013 viz., Wipro GE Healthcare

Private Limited (‘WIPRO’ for short) also wrote letter to the

Joint Secretary to the Government of India requesting

certain changes in the tender conditions. Thereafter a

Corrigendum was issued by NIMHANS on 21.3.2013 (vide

Annexure-F in Writ Petition No.14573/2013) modifying the

tender condition viz., “Supply, Installation, Commissioning,

Demonstration of Performance, Training of Personal and

Provisions of Guarantee of Performance State of Art, Top of

the Line, Integrated Simultaneous/Sequential 3T MR PET

Scanner System”, meaning thereby NIMHANS accepted the

9

contentions of the petitioners that bidders offering

sequential technology should also be allowed to participate

in the tender.

The technical bids were opened on 23rd March 2013 in

presence of representatives of all the bidders. NIMHANS

called on the bidders by sending e-mail dated 23.3.2013 to

depute their representatives to attend the purchase

committee meeting scheduled to be held on 24th and 25th

March 2013 onwards. On 24.3.2013, representatives of all

the three bidders made detailed presentations to the

purchase committee of NIMHANS. In the evening of

24.3.2013, according to the petitioners they were informed

orally that the technical bid of SIEMENS was accepted.

They were further informed orally that the financial bid of

SIEMENS would be opened as per law.

10

3. According to the petitioners, though their bids

were technically compliant, no reasons were provided for

considering the financial bid of the SIEMENS only. In

other words, the petitioners contend that their technical

bids are rejected without assigning any reason.

Sri Naganand, learned senior advocate appearing on

behalf of WIPRO (Petitioner in W.P. No.23762/2013)

submits that NIMHANS being the instrumentality of the

State is required to act in accordance with law and provide

a level playing field so as to enable persons such as the

WIPRO to provide the best possible technologically

advanced Scanner System to a medical institute of

international repute such as the NIMHANS; the modification

of the technical requirements made by NIMHANS from

stage to stage was only to favour SIEMENS which is being

declared successful in the technical bid; The NIMHANS has

conveniently made modifications to the technical bid

requirements such that they are either diluted,

11

specifications lowered or mandatory requirements have

been made optional so as to solely benefit SIEMENS; The

NIMHANS has introduced very major change in the machine

required and has proceeded in fast track in order to award

tender in favour of SIEMENS; rejection of the bid of the

WIPRO without assigning reasons is bad in the eyes of law;

the Scanner System of the SIEMENS is not a 3 Tesla

Machine and its rating is 2.89 Tesla with an operational

frequency of 123.2 MHz; whereas Scanner System of the

WIPRO is a 3 Tesla machine with an operational frequency

of 127.72 MHz; on this very ground, the Kerala High Court

was pleased to dismiss the writ petition filed by SIEMENS

challenging the tender being awarded to WIPRO; Repeated

revisions to the tender is unfair and biased towards

SIEMENS; NIMHANS has acted unreasonably in rejecting

the technical bid of the WIPRO and it has acted in

discriminative manner; by issuing Corrigendum dated

21.3.2013 to the 3rd call for tender allowed the

12

manufacturers of simultaneous as well as sequential 3T MR

PET Scanner System to participate in the tender; Insofar

as sequential 3T MR PET Scanner System is concerned, all

the three bidders have bid for the same; however insofar as

integrated simultaneous 3T MR PET Scanner System is

concerned, only the SIEMENS has submitted the bid; this

has lead to a situation where there is competition in

sequential 3T MR PET Scanner System is concerned while at

the same time they removed competition insofar as

Integrated Simultaneous 3T MR PET Scanner System is

concerned; the NIMHANS would have considered only

Sequential Scanner System and evaluated only the

technical bids of all the three bidders with respect to

Sequential Scanner Systems; NIMHANS being the

instrumentality of the State has a duty to ensure

transparency in the public procurement so as to ensure that

the institution benefits by being able to procure the

intended equipment at the best possible price.

13

Sri Udaya Holla, learned senior advocate appearing on

behalf of the petitioner – PHILIPS in Writ Petition

No.14573/2010 reiterated almost the very grounds as were

argued by Sri Naganand mentioned supra. He submits

that the entire tender process carried out by NIMHANS is

arbitrary, unfair and unreasonable with a view to favour

SIEMENS over the petitioner; NIMHANS has been biased

against PHILIPS and has therefore rejected the petitioner’s

technical bid; despite calling for sequential 3T MR PET

Scanner System, the petitioner’s bid was rejected for the

reason that it had submitted its bid for a sequential 3T MR

PET; that despite non-compliance on the part of SIEMENS,

the technical bid of the SIEMENS has been accepted without

assigning any reason therefor; the action of NIMHANS is

against public and national interest; the arbitrariness on the

part of NIMHANS is depicted by the fact that NIMHANS has

hurried to complete the entire process within a day; the

terms of the tender are tailor-made in favour of SIEMENS;

14

he further draws the attention of the Court to the

allegations made by the PHILIPS in its rejoinder to the writ

petition.

4. Per contra, Sri K.G. Raghavan, learned senior

advocate appearing on behalf of the successful bidder,

opposing the writ petitions has contended that only

SIEMENS had submitted the bid pursuant to the Global

Tender Notification dated 16.1.2013 issued by NIMHANS

(first call); since the only bid of SIEMENS was received by

NIMHANS pursuant to the Tender Notification dated

16.1.2013, NIMHANS invited the bids once again by issuing

second Tender Notification dated 19.2.2013; in response to

the second call, SIEMENS and WIPRO participated in the

tender and submitted their bids; PHILIPS (petitioner in Writ

Petition No.14573/2013) did not participate pursuant to

the first and second tender notifications and consequently

has no locus standi to make allegation against NIMHANS as

well as SIEMENS; NIMHANS having felt that still wider

15

participation is needed for getting appropriate Scanner

System, invited bids (third call) vide Tender Notification

dated 16.3.2013 fixing the due date for submission of the

bid on 23.3.2013; in order to have a competitive bid,

Corrigendum dated 21.3.2013 was issued by NIMHANS

under which NIMHANS amended the description of

equipment viz., Integrated Simultaneous/Sequential 3T MR

PET Scanner System and in response to the same, all the

three bidders submitted their bids; the technical bids were

opened on 23.3.2013 in the presence of representatives of

all the bidders; thereafter a meeting was held on 24.3.2013

and in the said meeting, after evaluation and negotiations

on technical bids of all the parties, NIMHANS informed the

bidders that the technical bid of SIEMENS has met the

criteria and the same was accepted and consequently

NIMHANS informed both the petitioners that their technical

bids have been rejected; NIMHANS has constituted a broad

based committee of Technical Experts from within the

16

institute and from other leading institutions in the country;

the purpose of such a broad based committee was to

ensure that the Government funds are utilized to procure

the best technology to meet the clinical requirements of the

institute and to conduct whole process of procurement in a

fair and transparent manner. The committee after

analyzing the technical specification of the equipments of

the three bidders and after discussions and negotiations

with them, has found that the bid of SIEMENS meets the

criteria and accepted the same; the bids of the petitioners

have not complied with the technical requirements of the

tender document; the system proposed to be procured is a

very “Advanced Diagnostic Equipment” for diagnosis of

various types of neurological diseases and to meet the

clinical requirement, it is absolutely essential to meet with

the tender specifications under the head “PET

Specification”; He draws the attention of the Court to

various deviations in the specification found in the technical

17

bids of the petitioners in response to the third and final

tender call; He further submits that the experts in the

field have chosen the Scanner System manufactured by

SIEMENS by concluding that the Scanner System of

SIEMENS is best suited for the purpose.

The arguments advanced by Mr. Raghavan are almost

reiterated by Sri Madhusudan Rao, learned advocate

appearing on behalf of NIMHANS. Sri Madhusudan Rao

opposing the writ petitions contended that the petitioners

are not entitled to any of the reliefs in view of the fact that

the technical bids submitted by all the three bidders were

considered by the Technical Committee consisting of the

experts in the field from NIMHANS and from reputed

institutions of different parts of the country and the

recommendations of the Technical Committee revealed that

the technical bids submitted by the petitioners were not

responsive to the specifications mentioned in the tender

notification and that the technical bid submitted by

18

SIEMENS was in compliance with the specifications

mentioned in the tender notification. He further submits

that the petitioners are guilty of suppressing the material

facts and misrepresenting the facts. He has denied all the

allegations made against the NIMHANS by the petitioners.

Sri Madhusudana Rao further submits that the

common list of specifications was agreed upon in the

meeting held on 20th and 21st October 2012 in which the

Director of NIMHANS and Heads of various departments

and several experts in the field from different premier

institutions like All India Institute of Medical Sciences,

Department of Nuclear Medicine, Indian Institute of Science

etc., participated. After considering various proposals

given by the bidders, certain technical requirements were

also decided; in the pre-bid meeting, all the three bidders

were given the fullest opportunity to putforth their

presentation and the entire process was transparent and

19

consequently the specification that was drawn did not

favour any particular company; the Corrigendum dated

8.2.2013 was issued only to enable broad based

participation of any vendor who would be in a position to

obtain a certification of either of the two internationally

reputed regulatory agencies viz., FDA and CE; while the

original Tender Notification required certification from both

the authorities of the equipment to be supplied by the

vendors, the vendor who is in a position to produce the

certification by either of the two authorities also could

participate in the proceedings in view of the amendment to

the tender conditions; this was done only with a view to

enable the level playing field for all the vendors and also to

increase their participation in the bidding process; Pursuant

to the notification dated 16.1.2013, NIMHANS as such

received only single bid from SIEMENS; since there was

only a single bid, NIMHANS decided to re-notify the tender

item and as such second global tender notification dated

20

19.2.2013 was published by NIMHANS inviting bids;

Pursuant to said notification dated 19.2.2013, NIMHANS

has received only two bids from WIPRO and SIEMENS; after

receiving such bids, the purchase committee meeting

consisting of experts was convened on 15.3.2013 and in the

said meeting WIPRO and SIEMENS were invited to

participate and after their participation and detailed

discussion and scrutiny of specifications, the expert

committee concluded that neither WIPRO nor SIEMENS met

the required technical specifications as notified in the

tender; Thereafter the technical committee recommended

certain modifications to the specifications in order to

provide an opportunity for all the bidders in its meeting held

on 15th and 16th March-2013; thereafter one more tender

notification was issued (third call) on 16.3.2013; in the

meanwhile, PHILIPS addressed letter dated 8.3.2013

wherein it requested NIMHANS to include sequential 3T MR

PET Scanner System; since the Technical Committee has

21

earlier recommended for the purchase of only simultaneous

integrated 3T MR PET Scanner System with the accessories,

NIMHANS had to again consult the members of the

Technical Committee regarding the request made by

PHILIPS and also the feasibility of considering the bids in

respect of sequential 3T MR PET Scanner System; the

committee members suggested that even the sequential MR

PET Scanner also can be included for consideration; In that

regard, NIMHANS issued Corrigendum dated 21.3.2013

including even sequential 3T MR PET Scanner System also

in the tender document; It is further submitted that the

tender notification issued by NIMHANS makes it clear that

NIMHANS has a right to accept or reject the tender without

assigning any reason; the petitioners having responded to

the tender notification issued by NIMHANS containing the

aforesaid stipulation, cannot now question the decision of

NIMHANS in accepting the technical bid of the SIEMENS and

rejecting the bids of the petitioners; the bids submitted by

22

all the three bidders were considered by the Expert

Committee consisting of several experts from various

premier and eminent institutions all over the country; the

recommendation of the Technical Committee consisting of

experts have been accepted by NIMHANS and the decision

is taken to accept the technical bid of SIEMENS; the

decision of the NIMHANS based on the advice and opinion

of the technical committee referred to above cannot be

questioned by the petitioners in the Court of law inasmuch

as the expert’s opinion needs to be respected; the bids of

the petitioners were not complying the tender conditions;

the models offered by the petitioners do not satisfy the

requirements of the tender conditions. One of the

specification is that acquisition of the PET data and MR

sequences should be simultaneous/sequential and both the

modalities shall be integrated so as to achieve pixel to pixel

fusion; in the bid submitted by PHILIPS, it was only stated

that the equipment to be offered is integrated PET MR with

23

sequential imaging and the same does not refer to the

requirement of pixel to pixel fusion; as on the date of

submission of the tenders, the petitioners’ equipments were

not fully ready with the specification as asked for; He

further draws the attention of the Court to the counter filed

by NIMHANS and contends that the contentions raised by

the petitioners are incorrect. On these among other

grounds, he prayed for dismissal of the writ petitions.

5. Learned advocate appearing on behalf of the first

respondent – NIMHANS made available the original records

maintained by the Authority for the purpose of perusal of

the Court. The original records are perused.

6. Before proceeding further, it is relevant to note the

admitted facts, which are as under:

The NIMHANS invited Expression of Interest from

prospective bidders by letter dated 23.8.2012 for “a New

State of Art, Top of the line 3T MR PET MRS Scanner

24

System with latest generation gradient system”.

Petitioners as well as private respondents submitted their

responses. The Expressions of Interest received from

various bidders were opened on 14.9.2012. On 20th and

21st October 2012 pre-bid meetings were held in which all

the three bidders participated. Based on the Expressions

of Interest made by the bidders, common list of

specifications were agreed upon in the pre-bid meeting. It

is relevant to note that the meetings dated 20th and 21st

October 2012 were attended not only by the Director and

Registrar of the Respondent No.1 institution, but also by

other Heads of various departments of Respondent No.1

institution and several other experts from different premier

institutions like All India Institute of Medical Sciences, New

Delhi; Department of Nuclear Medicine, SGPGIMS,

Lucknow; Department of Physics, Indian Institute of

Science, Bangalore as also the Head of the Department of

Radiology, Manipal Hospital. All the three bidders made

25

their presentations. After considering various proposals

given by the bidders, it was decided that integrated

combined system with PET detector located within the MR

Gantry is the equipment which should be procured and

certain other technical requirements were also decided.

The whole process relating to pre-bid discussion was

transparent. This is clear from the letter dated 21.10.2012

written by the representative of PHILIPS to the first

respondent (Annexure-R1 to Writ Petition No.14573/2013)

wherein the representative of the PHILIPS has declared that

the whole process was transparent and specifications do not

favour any particular company. It is also mentioned in the

very letter that PHILIPS had discussed the specifications in

detail in presence of other potential competitors and in

presence of members of the pre-bid committee.

Thereafter Tender Notification was issued on

16.1.2013 based on the recommendations of the Technical

26

Committee. Thereafter PHILIPS addressed a letter dated

21.1.2013 requesting for certain amendments to tender

document including deletion of “the PET detector to be

housed within the MR Magnet”, which means that in

addition to inviting the bid for simultaneous 3T MR PET

Scanner, even sequential 3T MR PET also should be

included in the tender document. Corrigendum was issued

on 8.2.2013 by the first respondent whereby the words

FDA(510 K), CE was to be read as FDA/CE in the tender

document. The said Corrigendum was issued to enable

broad based participation of any vendor who would be in a

position to obtain certification of either of the aforesaid two

internationally reputed regulatory agencies. FDA is a

certificate issued by USA, whereas CE is a certificate issued

by U.K. While the original Tender Notification required

certification from both the authorities, the vendor who was

in a position to produce certification from either of the two

authorities also could participate in the proceedings in view

27

of the said amendment. This was obviously been done to

enable the level playing field for all the vendors and also to

increase their participation. It is relevant to note that

inspite of such relaxation, the first tender notification dated

16.1.2013 received only a single bid from respondent No.2

– SIEMENS.

Since there was single bid, respondent – NIMHANS

decided to re-notify the tender item and as such second

global tender notification dated 19.2.2013 was published by

the first respondent inviting the bids. Pursuant to the said

notification dated 19.2.2013, only WIPRO and SIEMENS

offered their bids. After receiving the aforementioned bids,

the purchase committee meeting consisting of technical

experts was convened on 15.3.2013. In the said meeting,

WIPRO and SIEMENS were invited to participate. After

detailed discussion and scrutiny of specification of the

WIPRO and SIEMENS, the expert committee concluded that

28

neither WIPRO nor SIEMENS met the required technical

specification as notified in the tender. The technical

committee thereafter recommended certain modifications to

the specification in order to provide an opportunity for all

the bidders.

Thereafter one more tender notification was issued

(3rd tender notification) on 16.3.2013 as produced at

Annexure-D to Writ Petition No.14573/2013. In the

meanwhile, PHILIPS addressed a letter on 18.3.2013

requesting the first respondent to include even sequential

3T MR PET Scanner System. Since the technical committee

had earlier recommended for purchase of only simultaneous

integrated 3T MR PET Scanner System with the accessories,

the first respondent had to again consult the members of

the technical committee regarding the request made by

PHILIPS and also feasibility of considering the bids in

respect of sequential 3T MR PET Scanner System. The

29

committee members agreed that even sequential MR PET

Scanner also can be included for consideration. In this

background, corrigendum dated 21.3.2013 was issued by

the first respondent to the third tender notification dated

16.3.2013 for inclusion of sequential 3T MR PET Scanner

System also in the tender document. In furtherance of the

third call dated 16.3.2013 made by the first respondent and

the Corrigendum dated 21.3.2013, all the three bidders

participated.

The aforementioned facts are not in dispute.

7. From the above, it is clear that the changes made

from time to time in the specifications of the system to be

procured were mainly at the behest of the petitioners.

Thus it is not open for the unsuccessful petitioners to

contend that the specifications were altered only to suit the

SIEMENS. Moreover the modification in respect of technical

specifications were made as per the decision of the

30

technical committee consisting of experts not only from

Respondent No.1 institution but also external experts

hailing from different reputed institutions all over the

country. It is needless to observe that the equipment to

be purchased by the first respondent could be only as per

the recommendations of the technical committee.

Absolutely no allegations of favouritism are found in the

writ petitions against any of the members of the technical

committee. In the absence of allegations of favouritism

against any of the individual members of the technical

committee, no credence whatsoever can be given to the

allegation that the specifications were altered in favour of

SIEMENS.

8. The purchase committee consisted of not only the

Director & Vice Chancellor of NIMHANS and other Heads of

departments of NIMHANS but also various reputed external

members such as (a) Head of Nuclear Medicine, AIIMS, New

31

Delhi (b) Head of Nuclear Medicine, Tata Memorial Hospital

and Molecular Imaging, Mumbai (c) Consultant, RMC, Baba

Atomic Research Centre, Tata Memorial Hospital, Mumbai

(d) Professor & Head of Department of Imagiology, Nizams

Institute of Medical Sciences, Hyderabad etc., The

purchase committee consisting of experts in the field

thought it fit to relax the terms obviously in order to get

more competition. It is relevant to note that the relaxation

was made in the public interest, that too mainly at the

behest of the petitioners.

9. It is by now well settled that on matters affecting

policy and requiring technical expertise, the Court would

leave the matter for decision of those who are qualified to

address the issues; Unless the policy or action is

inconsistent with the Constitution and the laws or arbitrary

or irrational or abuse of power, the Court will not interfere

with such matters {see FEDERATION OF RAILWAY

32

OFFICERS ASSOCIATION AND OTHERS .vs. UNION OF

INDIA – (2003)4 SCC 289}.

10. It is relevant to note that the first and the second

tender notifications were issued by the first respondent in

respect of simultaneous 3T MR PET Scanner System only.

As aforementioned, PHILIPS as well as WIPRO did not

choose to participate pursuant to the first tender

notification, but only SIEMENS had participated. However,

pursuant to the second tender notification, WIPRO and

SIEMENS only had participated, PHILIPS did not participate.

As aforementioned, 1st respondent decided to have third

call. Even the third call was in respect of simultaneous 3T

MR PET Scanner System only. However, Corrigendum

was issued by the first respondent accepting the request of

PHILIPS for change of specification. By virtue of the

Corrigendum as aforementioned, even the sequential 3T MR

PET Scanner System was also included alongwith

33

simultaneous 3T MR PET Scanner System in the tender

document.

Only thereafter PHILIPS participated. It filed its bid

for integrated sequential 3T MR PET Scanner system. So

also WIPRO submitted its bid only for sequential 3T MR PET

Scanner System (it was not for integrated model).

However, SIEMENS submitted two bids i.e., one bid for

integrated simultaneous 3T MR PET Scanner System and

another bid for integrated sequential 3T MR PET Scanner

System. It is needless to observe that neither of the

petitioners did bid for integrated simultaneous 3T MR PET

Scanner system.

It is relevant to note that WIPRO had bid for

simultaneous 3T MR PET Scanner system pursuant to the

second tender notification. However, it did not choose to

submit its bid for integrated simultaneous 3T MR PET

Scanner System pursuant to the third tender notification.

34

The very fact that the area was enlarged by including

sequential 3T MR PET Scanner system as also by providing

option to the bidders to obtain certification of either of the

two internationally reputed regulatory agencies viz., FDA

and CE would clearly reveal that it is not a case of

exclusion, but it is a case of inclusion. The first respondent

in order to have broader participation of all the three

manufacturers and in order to consider all the bids

submitted by the bidders, had made aforementioned

changes, that too mainly at the instance of the petitioners

herein. Thus this Court does not find any defect in the

decision making process.

Though the tender was invited for integrated

sequential/simultaneous model, WIPRO had not submitted

its tender for integrated model. However, as

aforementioned PHILIPS had submitted its bid pursuant to

the third tender notification in respect of integrated

35

sequential model, whereas SIEMENS had submitted two

bids i.e., one bid for integrated simultaneous model and

another bid for integrated sequential model.

11. Sri Madhusudana Rao, learned advocate appearing

on behalf of the 1st respondent has contended that reasons

for rejection of the technical bid could not be furnished to

the bidders as writ petition was filed by PHILIPS on

25.3.2013 i.e., on the very next day of the decision. The

meeting was held on 24.3.2013 and on the very next day

i.e., 25.3.2013, Writ Petition No.14573/2013 was filed by

PHILIPS. Therefore this Court is of the opinion that the

advocate for Respondent No.1 is justified in contending that

the reasons could not be furnished to the unsuccessful

bidders for rejection of their technical bid, because of the

aforementioned reason.

36

12. It is relevant to note that the technical bids were

opened on 23.3.2013 in presence of the representatives of

the bidders and the meeting was held on 24.3.2013. In

the said meeting, all the three bidders were represented

and their representatives made detailed presentations

before the committee. After considering the technical bids

of all the three bidders and the presentations made by their

respective representatives and taking into account

advantages and disadvantages of the equipment to be

offered by the bidders, the Committee accepted the

technical bid of the SIEMENS. The decision was

pronounced on 24.3.2013 itself in presence of

representatives of three bidders. According to the first

respondent, representatives of the bidders who were

present in the meeting were fully aware of the

circumstances in which the technical bid of the SIEMENS

was accepted and the reasons as to why the technical bids

of both the petitioners were rejected. Moreover it is made

37

clear in the tender document itself that Respondent No.1

has right to accept or reject one or all the tenders without

assigning any reason. The petitioner having accepted the

conditions of the tender, cannot question the decision of the

first respondent in accepting the technical bid of SIEMENS

and rejecting the bids of the petitioners, that too when the

decision is based on experts’ opinion. As aforementioned,

the bids were considered by the Technical Committee

consisting of several experts who were drawn from various

premier and eminent institutions all over the country. The

technical committee on considering various aspects of the

system to be procured, recommended to accept the bid of

SIEMENS. The recommendation of the technical

committee has been accepted by the first respondent and

the decision was taken to accept the technical bid of

SIEMENS.

38

13. Learned advocates appearing on behalf of all the

three bidders tried to point out the deficiencies in the bids

submitted by other tenderers. Ultimately, the technical

committee against whom no allegation is made had taken

decision to purchase the integrated simultaneous 3T MR

PET Scanner System in the interest of the public at large.

The first respondent is a premier health and research

institute in India and it caters to the needs of the patients

having neurological problems. Keeping the interest of the

public at large and interest of the first respondent

institution, the technical committee has taken decision to

purchase integrated simultaneous 3T MR PET Scanner

System. As aforementioned, on matters affecting policy

and requiring technical expertise, the Court would leave the

matter for decision of those who are qualified to address

the issues. Even if some defect is found in the decision

making process, the Court must exercise its discretionary

powers under Article 226 of the Constitution with great

39

caution and should exercise only in furtherance of the public

interest and not merely on making out a legal point. The

Court should always keep the larger public interest in mind

in order to decide whether its intervention is called for or

not. Only when it comes to a conclusion that

overwhelming public interest requires interference, the

Court should interfere. In the matter on hand, this Court

finds that the public interest is not affected at all. On the

other hand, the Experts Committee has created level

playing field by enlarging the scope of the tender

notification and thereafter has taken decision keeping

interest of the public at large. Since the experts have

taken decision to purchase a particular model, this Court

cannot substitute its view treating itself as an appellate

authority in such matters. The public interest cannot be

jeopardized at the instance of a manufacturer who claims to

have a similar product. The commercial interest of the

manufacturer should yield to the greater public interest.

40

Ultimately, the interest of the public is paramount. The

Courts would interfere with the administrative policy

decision only if it is arbitrary, discriminatory, mala fide or

actuated by bias. In the matter on hand, this Court does

not find any of them. The public interest demands that the

first respondent should purchase the best-suited model/

system, keeping in mind the interests of patients. Since

experts in the field have chosen the system/model offered

by SIEMENS keeping in mind the public interest, the action

is neither arbitrary, discriminatory, mala fide nor actuated

by bias. Law should take back seat to give way to the

larger public interest. In the matter on hand, the first

respondent has taken decision on the basis of the

recommendation of the technical expert committee. As

aforementioned, the committee consisted of number of

experts in the field. Therefore it is not open for the

manufacturer to contend that the decision taken by the

expert committee is bad in the eyes of law. It is also not

41

open for the petitioners to contend that sequential model

ought to have been preferred to the simultaneous model.

14. As can be seen from the statement of objections

filed by the first respondent, it is clear that the models

offered by the petitioners did not satisfy the requirement of

the first respondent. One of the specifications is acquisition

of the PET data and MR sequences should be

simultaneous/sequential and both the modalities shall be

integrated so as to achieve pixel to pixel fusion. In the bid

submitted by PHILIPS it was only stated that the equipment

to be offered is integrated PET MR with sequential imaging

and the same does not refer to the requirement of pixel to

pixel fusion. Whereas the bid submitted by WIPRO was not

for integrated model, but it was only for sequential 3T MR

PET Scanner System. What was needed by the first

respondent was an integrated model to achieve pixel to

pixel fusion.

42

15. It is contended on behalf of the petitioners that

the model offered by SIEMENS was of 2.89 Tesla MRI and

not 3.00 Tesla MRI and whereas the model offered by the

petitioners is of 3.00 Tesla MRI. In other words, the

learned counsel for the petitioners argued that the models

offered by the petitioners would provide more accurate

result as compared to the model offered by SIEMENS. In

the tender notification, the specification of 3.00 Tesla MRI is

stated to be approximate and it was not specified that it is

an absolute requirement. It is no doubt true that the

models offered by the petitioners are of 3.00 Tesla MRI and

the model offered by SIEMENS is of 2.89 Tesla MRI. Since

the tender does not require that the model should have

3.00 Tesla MRI, it is not open for the petitioners to contend

that the model offered by SIEMENS should be rejected.

Moreover it is for the experts in the field to decide as to

which of the model is suitable for the purpose for which the

system is being purchased. Taking into account the various

43

technical specifications and the advantages, which were

found to be in existence in the model offered by the

SIEMENS, the technical committee suggested that 2.89

Tesla MRI offered by the SIEMENS is sufficient and that the

same does not compromise with the quality of imaging.

16. It is relevant to note that the first respondent is

not either in favour of or against any of the bidders. It is

brought to the notice of the Court by the learned advocate

for the first respondent that the first respondent had

already purchased MR PET Scanner systems from both the

petitioners at an earlier point of time. It is also submitted

that the first respondent if need be may purchase the

Scanner System from any of the bidders including the

petitioners in future also as per law.

17. Looking to the totality of the facts and

circumstances, this Court finds that the decision making

process of the first respondent – NIMHANS in the matter

44

on hand is just and proper. The decision is taken in most

transparent manner by the first respondent on the basis of

the recommendations of the Technical Committee

consisting of experts in the field not only from within the

first respondent institution but also from the reputed

institutions all over the country.

In view of the above, no interference is called for.

Petitions fail and the same stand dismissed.

Sd/-

JUDGE

Gss/-